Ruth McFeeters v. Township of Mariposa, 1997 ONAFRAAT 13

Agriculture, Food and Rural Affairs Appeal Tribunal

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West Guelph, (Ontario) N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Email: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: McFeeters Drainage Works Township of Mariposa

McFeeters Drainage Works (RE) 1997 ONAFRAAT 13

STATUTE: Drainage Act

HEARING: April 24, 1997

DATE OF DECISION: May 7, 1997

1997-13

NEUTRAL CITATION: 1997 ONAFRAAT 13

McFeeters Drainage Works Township of Mariposa

IN THE MATTER OF: THE DRAINAGE ACT R.S.O. 1990, CHAPTER D.17, AS AMENDED.

AND IN THE MATTER OF: An Appeal to the Ontario Drainage Tribunal by Ruth McFeeters under Section 54 of the Drainage Act from the decision of the Court of Revision on the McFeeters Drainage Works, Township of Mariposa.

Before: Mr. Herb Todgham, Vice-Chair; Mr. Andrew Wright, Vice-Chair; Mr. Stewart Hart, Member.

Appearances: Mr. Dale McFeeters, on behalf of the appellant Ruth McFeeters. Mr. Brian Greck, P. Eng., Drainage Superintendent, on behalf of the respondent the Township of Mariposa. Mr. Tom Pridham, P. Eng., the engineer who prepared the report for the proposed McFeeters Drainage Works.

DECISION OF THE TRIBUNAL

This appeal was heard in the township offices of the Township of Mariposa at Oakwood, Ontario on April 24, 1997. Mrs. Sandra Lloyd, Clerk of the Township of Mariposa (the Township), performed the duties of the Clerk of the Ontario Drainage Tribunal (the Tribunal).

Ruth McFeeters appealed to the Tribunal under Section 54 of the Drainage Act (the Act) from the decision of the Court of Revision for the McFeeters Drainage Works.

Section 54(1) of the Act is as follows:

54. (1) Any party to an appeal before the court of revision may appeal to the Tribunal by giving notice addressed to the clerk of the Tribunal, given to the clerk of the initiating municipality, from the decision of the court of revision or from its omission, neglect or refusal to hear or decide an appeal within twenty-one days of the pronouncement of the decision of the court of revision or of any matter evidencing such omission, neglect or refusal.

The Background

After a decision of the Tribunal dated June 8, 1995 the Council of the Township appointed Mr. Tom Pridham, P. Eng., of R. J. Burnside & Associates Ltd., as the engineer to respond to the petition of Ruth McFeeters pursuant to Section 8(1) of the Drainage Act. A site meeting was held on September 28, 1995 with most of the owners in the watershed, one member of Council and the Drainage Superintendent in attendance with the engineer. The concerns raised at the site meeting were:

1/ the pasture section of the McFeeters lot needed improved drainage.

2/ two tile outlets from the Van Schaik property outlet into open ditches then onto the surface of the ground then run through the northern portion of the McFeeters property.

A report, dated June 21, 1996, was prepared and filed with the Township. The report provides for the installation of 665 meters (2,182 feet) of tile drain and 160 meters (525 feet) of open drain improvements along with associated appurtenances. The tile sizes are 450 mm (18 inch), 400 mm (16 inch) and 350 mm (14 inch). The estimated cost of the work is $40,000.00 and it was proposed to be assessed as $30,000.00 benefit and benefit by cut off and $10,000.00 as outlet liability.

The area requiring drainage was determined by the engineer to be part of Lot 1, Concession 13, comprising roughly 33.5 hectares. This entire area is owned by Ruth McFeeters and therefore, in the opinion of the engineer, the petition complied with Section 4(1) (a) of the Act.

On December 16, 1996 By-law 96-21 adopting the report was provisionally adopted and the Court of Revision was set for January 13, 1997. The only written appeal filed within the required 10 days prior to the Court of Revision was from Irene Holder, the owner of property Roll No. 40-136-00 located at the outlet of the proposed work. This property had been assessed $6,000.00 for benefit and benefit by cut-off and nothing for outlet liability.

A fax was received by the Township from Brown Bros. Farms Incorporated, owner of property Roll No. 40-205-00, dated January 10, 1997, indicating they would like to register an appeal. This property has been assessed $134.00 in outlet liability.

Mr. Randy Love, owner of property Roll No. 40-140-00, was in attendance at the Court of Revision and filed an appeal. This property as assessed $2,283.00 in outlet liability.

The three member Court of Revision convened on January 13, 1997 and was comprised of one member of Council and two Township ratepayers. A resolution was passed that they would hear late appeals as provided for under the Act. The Court heard and decided the three appeals.

The Court of Revision dismissed the appeals of Brown Bros. Farms Inc. and R.& K. Love. The Court reduced the benefit assessment on the Holder property from $6,000.00 to $3,000.00 and transferred the $3,000.00 reduction to the McFeeters benefit assessment.

Mrs. McFeeters is appealing the decision of the Court of Revision to increase the benefit assessment against her lands by this $3000.00.

The Issue

The issue before the Tribunal is whether or not the assessments proposed in the engineer’s report, as modified by the Court of Revision, are appropriate.

The Evidence and the Findings

Mr. Tom Pridham, P. Eng., the engineer who prepared the June 1996 report for the McFeeters Drainage Works outlined the report and presented the methodology of calculating the assessments contained in the report. According to Mr. Pridham:

• As the cost per metre of drain did not change greatly, the calculations were based on a “cost per lineal meter” method with the outlet assessment rate based on where flows entered the system. The McFeeter’s outlet assessment was based on the water entering the drain at the point where the drain left the property.

• In calculating the outlet assessment tiled lands, including the McFeeters lot which will be tiled, were assessed at twice the base rate, residential lots were also assessed at twice the base rate, bush lands were assessed at one half the base rate and the Township Road at three times the base rate.

• A minimum outlet liability of $50.00 was assessed for small holdings.

• The final outlet rate for the Van Schaik property was $152.90/ha.

• The final outlet rate for the Love property was $89.53/ha. This rate is less than the Van Schaik property because of the tiling on the Van Schaik property and the fact that the Love property is further from the drain.

• The Holder property was not assessed outlet liability because the report provides that this property cannot be connected to the drain unless the connection is approved by Council pursuant to Section 66 of the Act.

• Flows from the upper watershed traverse along the Holder - McFeeters lot line (north to south) from roughly Sta. 725 to Sta. 442. Flows then turn westerly and outlet across the Holder property (roughly 300 metres) in a scratch ditch before outletting into the east County Road ditch. Flows then continue southerly in the road ditch (roughly 350 metres) to outlet into the existing watercourse. Catchbasins are placed at Sta. 725 and Sta. 442 to take the majority of the upstream water underground. The future connection of the existing outlets on the Van Schaik lot will further reduce overland flows.

• The bottom end of the drain from Sta. 442 downstream, including the open work, was estimated to cost $28,000.00 in total, including construction, allowances, and engineering.

• Using a 75:25 Benefit to Outlet ratio results in $21,000.00 to be assessed as benefit for the bottom part of the work. The Holder and County properties receive a benefit by cut-off and the McFeeters lot receives a direct benefit.

• The $21,000.00 benefit assessment for work below Sta. 442 was apportioned 50 percent to the County and Holder properties and 50 percent to McFeeters as follows:

Country Road $6,000.00

Holder $4,500.00

McFeeters $10,500.00

• The remaining work from Sta. 442 to Sta. 725 was estimated to cost $12,000.00, including construction, allowances, and engineering. Using a 75:25 Benefit to Outlet ratio results in $9,000.00 to be assessed as benefit for this particular reach.

• There is some benefit to the Holder lot provided by the work from Sta. 442 to Sta. 725, however the major beneficiary is the McFeeters lot. The drain is to be installed 15 metres east of the lot line to avoid blockage by the tree roots. With respect to the Holder lot, some localised drainage will be provided along the lot line and the catchbasin at Sta. 725 will help take flows underground. The control of surface water will be further improved when the upstream extensions are undertaken and the Van Schaik tiles connected.

• The benefit along this reach was set at $7,500.00 to the McFeeters lot and $1,500.00 to the Holder lot or roughly a division of 80:20.

• The total benefit assessment to the McFeeters lot was $18,000.00 ($10,500 plus $7,500.00) and the total benefit and benefit by cut-off assessment to the Holder lot was $6,000.00 ($4,500.00 plus $1,500.00).

• In summary, the $30,000.00 benefit and benefit by cut-off assessment was distributed as follows:

County Road $6,000.00 - 20%

Holder $6,000.00 - 20%

McFeeters $18,000.00 - 60%

Mr. Pridham told the Tribunal that it is his normal practice to assess a property for outlet liability based on where the water leaves the property in the drain and not on the basis of the total length of the drain that water from the property uses. In this case, all the water from the McFeeter’s property uses approximately one fifth of the length of the drain and is assessed outlet on only the length of the drain downstream of the property boundary.

Mr. Dale McFeeters addressed the Tribunal on behalf of the appellant Mrs. McFeeters. Mr. McFeeters said that he was prepared to accept the assessment as proposed by Mr. Pridham but felt that the Court of Revision decision resulted in an unfair assessment for benefit against Ruth McFeeters’ land. Mr. McFeeters filed with the Tribunal several photos showing water flowing over this land. He asked the Tribunal to reverse the decision of the Court of Revision and restore the assessments shown in the engineer’ report.

Mr. McFeeters reminded the Tribunal that this is the third appeal to the Tribunal on this project. He said that he has a concern that the Township council will not proceed diligently under the Act to get the drain constructed expeditiously once the Tribunal has issued its decision on this appeal. Mr. McFeeters requested the Tribunal to direct council to proceed with the project in a diligent fashion.

In response to questions Mr. McFeeters told the Tribunal that the photos show where the water has to flow in this area when there is flow. He said he did not have photos of the area showing conditions when there was no water flowing. Mr. McFeeters said that one of the major benefits of the project that he has identified is that the water will flow underground instead of over the top. He will also have a proper outlet for tile drains. He said that the project originally started as an open ditch but Mr. Holder was opposed to an open ditch. He said that, while he is not an engineer, he believes that an open ditch solution would compare closely in cost to the proposed drain so no significant savings would result, in the long term, if the project had been proposed as an open drain.

Mr. Holder, the owner of the property immediately downstream from the McFeeters farm, told the Tribunal that the pictures filed by Mr. McFeeters were taken in March. He said that the water looks like that every year in the spring but when the frost goes out the water is gone and that is the end of it for the year. Mr. Holder told the Tribunal that:

• he has farmed at his current location all of his life,

• this is one of the best farms in the township,

• once the spring flush has passed the land is dry and he has no problems getting a crop on or off,

• for these reasons he can not see a benefit to his property from the work.

Mr. Holder acknowledged that water flows over his land from the McFeeters farm but this occurs in the spring and has not interfered with the manner in which he farms.

Richard Van Schaik, the owner of the property immediately upstream from the McFeeters farm told the Tribunal that the tile drains from his property should have been connected to a proper outlet drain years ago. However, he said he felt that an open ditch drain is a much cheaper solution and his assessment should be based on providing the more economical solution not the more expensive solution.

Mr. Brian Grech, P. Eng., drainage superintendent for the Township, told the Tribunal that the Township’s position is that the decision of the Court of Revision should be allowed to stand.

In his reply evidence Mr. Pridham told the Tribunal that the engineer has to look past the owner and to the land itself. The engineer has to apportion the cost of the work based on the potential of the land not the use that the current owner makes of the land. He argued that while Mr. Holder may not take advantage of the drain a subsequent owner can. He argued that the Holder property benefits by having much of the surface water taken across it underground. Mr. Pridham also argued that there is not a significant difference in the long term cost between the drain proposed and an open ditch. While he agreed that an open ditch constructed by mutual agreement would cost less, that option was explored early in the procedure and was abandoned.

The Tribunal examined the evidence. The appellant in this case is Mrs. Ruth McFeeters and her request was to overturn the decision of the Court of Revision and restore the assessment as proposed by the engineer. Therefore, the Tribunal concentrated on the assessment of the McFeeters and Holder lands. The Tribunal acknowledges the argument of Mr. Van Schaik that his assessment should be based on the most economical method of providing an outlet for his water. The Tribunal agrees with the argument of Mr. Pridham that the long term cost of an open ditch constructed under an engineer’s report, for this problem, is comparable to the cost of the proposed drain and therefore the issue is one of distribution of the cost and not one of whether a less costly solution would result in a significantly reduced assessment on the Van Schaik farm.

The Tribunal is satisfied that there is “benefit by cut-off” to the Holder property and this is a proper heading for assessment in this case. The Tribunal identified benefit particularly to the land in the vicinity of and south of the scratch ditch.

The engineer provided evidence of his methodology of assessment. While the Tribunal would have approached the question of assessment differently it would have arrived at about the same result as the engineer. There was no indication that the engineer had made errors in calculation or had favoured any particular land over another. On review of the assessments the Tribunal is satisfied that the assessments, as proposed by the engineer, are appropriate and agrees that the adjustment made by the Court of Revision results in assessment too high on the McFeeters farm and too low on the Holder farm.

The appellant expressed frustration with the length of time it has taken to reach this stage of the procedures under the Act. At the request of the appellant, the Tribunal has decided to order the Township council to pass a By-law authorising the construction of the McFeeters Drain at the first council meeting held after the date on this decision. The Township council is to proceed to enter a construction contract by August 1, 1997, subject to section 59(1) of the Act. If Section 59(1) applies, the required meeting is to be held in or before August 1997 and, if the petition is sufficient to proceed, the council is to commence construction in or before September 1997. If the Township can accelerate this schedule the Tribunal encourages it to do so to allow the contractor time to construct this drain in the summertime when the soil conditions will be at the best for tile drain construction.

ORDER OF THE TRIBUNAL

After consideration of the evidence the Tribunal orders that:

1. The appeal of Ruth McFeeters from the decision of the Court of Revision is granted. The Clerk of the Township is directed to restore the assessments for the McFeeters Drainage Works to the assessments shown in the engineer’s report dated June 1996 prior to the passing of the By-law authorising construction of this drain.

2. The Township council is to pass a By-law authorising the construction of the McFeeters Drain at the first council meeting held after the date on this decision.

3. The Township council is to proceed to enter a construction contract by August 1, 1997, subject to section 59(1) of the Act.

4. If Section 59(1) applies, the required meeting is to be held in or before August 1997 and, if the petition is sufficient to proceed, the council is to commence construction in or before September 1997.

5. If the Township can accelerate this schedule the Tribunal encourages it to do so to.

6. There is no order as to costs and each party is responsible for their own costs. Attention is drawn to Section 73 of the Act.

Dated at Chatham, Ontario this 7th day of May 1997.